Kafka in Australia: the trial of Witness K

Franz Kafka's book The Trial is a waking nightmare. Josef K, a bank clerk, is arrested. He is never charged, and no evidence of wrongdoing is ever revealed. For the next 12 months he undergoes a series of encounters with strange people, hearing insinuations and veiled accusations.

The narrative is filled with a sense of suffocation, like the airless rooms from which he longs to escape. He confronts the psychological weapons of suspicion, concealment and pressure being used against him, but gradually becomes more and more a willing victim, ultimately passive as he walks to his death. He succumbs to the oppression of a system which presses down on him by unexplained laws and the constant threat of an invisible but sleepless court.

Although written in 1914 before the rise of the 20th century totalitarian regimes, the book's foreboding atmosphere is a fitting herald of those dehumanising systems. 'Kafkaesque' seems such clever adjective, as though we can look back to a flawed age, and sail above the soulless system that demolished Josef K. How very wrong we are. Our own chilling version of The Trial is being played out under our very noses, in the matter of 'Witness K' and his lawyer Bernard Collaery. The similarities do not end with names. In an appalling doubling, the pursuit of Josef K is mirrored in the prosecution of Witness K.

Witness K and Collaery have been charged with making known Australian state secrets in connection with the spying on Timor-Leste undertaken by the Australian Secret Intelligence Service (ASIS) in 2004. Under the guise of an AusAid program, operatives bugged the walls of the Timorese prime minister's offices and listened to negotiators' planning sessions. Australia thus duped the Timorese into signing the 2006 treaty governing the split of the revenues of a section of the Timor Sea.

One of the spies, now known as Witness K, became aware that high Australian officials involved in the spying were lobbying for Woodside, an Australian oil company with interest in the area. Witness K pursued ASIS's internal processes and was advised to get a lawyer, engaging Collaery.

Once the fact of the spying was clear, the Timorese took Australia to the International Court of Justice. Both Collaery's and Witness K's premises were raided and papers seized. K's passport was taken, thus preventing him from testifying at the Hague. Meanwhile, the Timorese revoked the treaty and began negotiations for a border with Australia, which (after Australia had exhausted every avenue of opposition) was signed in March 2018. Two months later, Witness K and Collaery were charged with offences against the Intelligence Services Act of 2001.

The nightmare is gathering momentum. As in Kafka's story, a parody of a proper trial is being played out, with secrecy, postponements, months-long delays, and late delivery of documents frustrating the process. And all this concerns merely the preliminary hearings. The two men and their families are demeaned: 'innocent people are humiliated in front of crowds rather than being given a proper trial', as Kafka writes.

"Kafka's dark tale appears hopeless. But that is a state into which those who know the story of Witness K and Bernard Collaery refuse to descend."

The Attorney-General has issued a non-disclosure certificate designed to prevent information likely to prejudice national security from being disclosed in court. So information connected to the unethical pursuit of wealth at the expense of a smaller and weaker partner is now dressed up as 'national security'.

In the interests of that security the defendants have not received the brief of evidence against them, and it is possible that the court case, in whole or in part, could be conducted in their absence. Kafka writes: '... but K should not forget that the trial would not be public ... the accused and his defence don't have access even to the court records, and especially not to the indictment ...'

Yet what is at stake is not some threat to Australians, but knowledge of the fraud committed by the government of Australia on the Timorese, and rightful public pursuit of those who ordered the illegal spying. Kafka's hero mused in hope that 'those who were really guilty, the high officials whom nobody had so far dared point out to him, received their punishment'.

Kafka's dark tale appears hopeless. But that is a state into which those who know the story of Witness K and Bernard Collaery refuse to descend. Australians have the responsibility to oppose the erosion of the fair trial process which is underway. The Attorney-General has the power to discontinue the case. He should do so immediately.

Susan Connelly, a Sister of St Joseph, has been involved in education as a primary school teacher and principal, and has also taught scripture in state schools full-time for ten years. She has had extensive involvement with the Timorese people, mainly in cultural pursuits and justice advocacy.

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Bravo Sister Susan. At a time when so many Catholics, prominent and otherwise, but mostly male, have had a lot to say about the fair trials of a couple of bishops, it is left to woman of the Church to raise the Kafkaesque nature of this trial. In a few week's time we get to vote for or against the government that set this trial in motion. Will we endorse it, and the immoral action at its source? Or will we damn it?Ginger Meggs | 05 April 2019

What this highlights for me is the parallel between the theft of valuable natural resource (oil) from the Timorese people and the theft of the many times more valuable resources (gold, iron ore, bauxite, uranium, copper, silver and coal) extracted from the lands of the Australian Aboriginal people. We inherited some very bad practice from the chosen to rule British colonial masters which was firmly based on superiority over all other races in what was the golden age of nationalist racism.john frawley | 07 April 2019

Well said Sister Connelly ... thank you.
The persecution of Witness K & Bernard Collaery by the Australian government is matched by the silence of the Labor Party in not calling-out this crime ... a crime being perpetrated against all Australians.John Richardson | 08 April 2019

Sometimes it takes a clear, unequivocal voice to unmask the “Yes Minister” manoeuvres in this case. My thoughts and prayers are with Witness K and Bernard Collaery. Steve Sinn | 08 April 2019

Dr Connolly's placement of Bernard Collaery and Witness K in the Kafkaesque world, of our government's covert machinations to coverup its espionage crime against Timor, is brilliant, a warning and call to action.
The government's hypocrisy is blatant in its banning of HuaWei from our 5G network on alleged spying grounds and its condemnation of China's expansion in the South China Sea while it has removed the maritime media line between us and Timor to grab Timor's resources. It's not just Collaery and Witness K's rights threatened its ours. We must protest this abuse of power.
Vacy Vlazna | 08 April 2019

Imagine if Labor wins the forthcoming election and Attorney General Mark Dreyfus immediately on being sworn in stops the trial. Alas Dreyfus and Labor had the opportunity during the last Labor regime and did nothing and they have not attempted to protest treatment of the defendants since then. Public pressure must continue to be applied to the government - whichever party is in power - to secure justice for these men.Peter Wesley-Smith | 08 April 2019

Thank you Sr Susan for your diligency and honesty in this campaign. So sorry I have anotgher community commitment and can't make it to the book launch.Judy Lambert | 08 April 2019

I met Josh Frydenburg in Dili when he visited Timor-Leste during his term as an advisor to the Howard government 1999-2005. During this period, he was an advisor to the Attorney-General, then Foreign Minister Alexander Downer then, on security, to PM John Howard. I have no evidence that he was involved in the 2004 bugging but, given his role and visit, it is fair that he be asked if he was. His response may clarify whether or not the trial in question is being suppressed to protect some high-level politicians. Pat Walsh | 08 April 2019

Thank you Susan for your excellent (as usual) article.
Yes it's true Australian governments have had multiple decades of practice on stealing from the rightful owners of this country. Easy to continue to apply elsewhere and must have been astounded to be caught out. Hence the indignation and the pursuit.
Witness K and Bernard C are national heroes and deserve every protection of the law and the oft touted 'Australian values' which seem not to apply when inconvenient.
Appreciation Susan for your keeping us informed in these crucial matters.Michele Madigan | 08 April 2019

Thank you Susan. You have been a great advocate for the East Timorese for many years. Now you are defending two men who saw an injustice and did not keep silent. How can we support these men? Silence is not an option.Claudette Cusack | 08 April 2019

Thank you Sister Susan for your brilliant idea to compare the shameful trumped up charges being levelled against Witness K and Bernard Collaery by our current Government with the trial of Josef K. in Franz Kafka's book "The Trial".
There are certainly many similarities between the two situations.
The actions of Witness K and Bernard Collaery played a pivotal role in helping to stop Australian political leaders from stealing Timor-Leste's oil and gas resources after the 24 year illegal and very brutal occupation of the country by the Indonesian military (TNI). Timor-Leste lost almost a 1/3 of its population and it was left in devastation.
All Australian governments during this period betrayed our WW2 ally and aided and abetted the TNI.
It looked as though Australia might prove to be a better friend when in 1999 circumstances forced the Howard government to play a crucial role in the UN peace force that finally forced the TNI out. However, Australia was proved to be a very reluctant saviour!
What happened next indicates how base the motives of our leaders were.
The action by ASIS to spy on the newly independent Timor-Leste leadership to obtain a better deal out of the negotiations between Australia and Timor-Leste on the common maritime border in the Timor Sea and the sharing of resources was outrageous.
But then, to order the ASIO raid on Collaery's office to purloin documents related to the case before the International Permanent Court of Arbitration and to confiscate Witness K's passport so that he could not testify were blatant attempts to pervert the course of justice.
It has to be hoped that the fate of Witness K and Bernard Collaery is not as grisly as that of Josef K. However, Australians who value justice and fair play want to ensure that these two men, who have played such a crucial role in stopping Australian leaders from stealing the oil resources from the poorest nation in SE Asia, are exonerated, but also honoured for their fair-minded, compassionate and courageous actions . Andrew (Andy) Alcock | 08 April 2019

Thanks to all who are showing such interest in this outrageous matter. As for what we can do - good advice has it to lobby Mark Dreyfus QC MP, the Shadow Attorney-General, whose shadow-life may actually morph into the real thing soon. You would notice that Labor is not on the front foot with this. The persecution of these two men is bi-partisan. However, we can never write anyone off, so let's do what each of us can to prevail on Mr Dreyfus. Also, I made an error on the notice of the book launch - it's on this coming Saturday, 13 April, not September as I had written. Thanks to Eureka Street for fixing it up, and to you, Michele, for your eagle eye.Susan Connelly | 08 April 2019

So where are the pronouncements from the bishops, or for that matter the leaders of other churches? They've been quick to advocate for religious freedoms and the sanctity of traditional marriage, to argue for funds for religious schools, and to question legal actions against their own, but where are the statements, the letters, the media articles, and the remonstrances about the immorality of the original spying, the laying of charges, and the abuses of the prosecution process. Is Sister Susan the only one among the clergy and religious who will stand up and be counted? Ginger Meggs | 08 April 2019

Bugging of the (then) East Timor prime minister's office, especially under the guise of an AusAid program is one of the most shameful activities of an Australian government body in recent time. Conducting a Kafkaesque trial of the only participant decent enough to let fellow Australians know what they did in our name, is the other. If the present Attorney-General does not stop this trial, we can only hope that the likely next Attorney-General, Mark Dreyfus, will stop it. We don't want Australia to be branded with " the Witness K Affair". Ian Fraser | 09 April 2019

Well written Sister Susan,
I support "Ginger Megs" observation regarding the ACBC. They are ready to protest vigorously over issues like the Same Sex issue, Confidentiality of the Confessional Seal and similar issues, but on social justice issues such as the illegal bugging and exploitation of East Timor's resources, now encapsulated in the prosecution of Collaery and Witness K they seem remarkably silent. Such breaches of Legal and Social Justice issues need calling out for what they are-loudly and fearlessly .Gavin O'Brien | 11 April 2019

And what is the government doing to help Assange other than the usual useless consular visit?Karis | 13 April 2019

What Susan is arguing here is that no one is above the law - and that includes Alexander DOWNER (from a family of massacre-committing "Nation Builders' one might note) and John Dubya Howard. These rotten-to-the-core manipulators of our democracy - and their various "handmaidens" need to be charged for their deviance against Timor L'Este and against Bernard CALLAERY and "Witness K". To think that such Kafkaesque legal twisting would take place here! But then there is Julian ASSANGE - totally undefended by our government as well - certainly the Bigot Bookshelf Bully Brandis has done NOTHING to protect him from the trumped up nonsense going on in London - given seven years to do so. Thank you for this essay Susan. I hope to see the current Attorney-General treated as equally fairly when he leaves his office. No one is above the Law - he should know that.Jim KABLE | 13 April 2019